WILL WI&SON

**ATToRNEYC3ENERAL** AUSTIN aa. -

December 20, 1962

HonorableRichard E. Rudeloff County Attorney Bee county Beeville, Texas OpinionNo. hW-1509
Re: Whetfier

%he Commlssloners~ Cotit may authorize the payment of expenses Incurred In the phychiatricexamlnatlon of.an Indigentprisoner charged wlth a felony, .for Dear Mr. Rudeloff: the purposes.stated. ,~ You have requestedan oplnion~fromtkiis,office upon the following,

questions: "(1.) Hay the Co~ssloners Court of Bfie County authorize the payment of expenses to be incurred In the phychlatrlcexaminationof an indigentprisoner chargedwith a ,felouy to determinewhether.ornot such prisoner was sane at the time of the commlsslonof the alleged offense and whether Oti not he Is sane at this tlme?~ "(2.) Is the Sheriff of Bee County author-, lzed to Incur bills, In behalf of the county, for psychiatricexaminationsof an indigent prisoner chargedwith a felony to determine whether 

### or not such prisoner was sane at the time of the commlsslonof the alleged offense and whether or **not** he Is sane at this time?"
In regard to the above-quotedquestionsyou have set forth the following facts:

II The attorney for the defendanthas flled'a'm&ion:.wlth the court, along with a supporting affidavitof a local physician, raising the issue of Insanity. Such motion requested an order that the defendantbe submitted to a prlvate psychiatristin San Antonio, Texas for mental examinationto determinewhether the defendantHonorableRichard E. Rudeloff,page 2. NW-1509)

was sane or insane at the time of the commission of the offense and whether he Is sane or insane atthlstlme. There Is no psychiatricoren:%;- logical facilitiesavailable local1 mated costs of such examinationis 500.00. $' - "The 36th JudicialDistrict Court of Bee County, the court In which such IndictmentIs pending, has granted such motion and has Issued Its order authorlzi to transpo~n~~~~~~~~h'~s~~~~~~~ In San Antonio, Texas and to such other place or places as.such doctormay direct for the purpose of making such mental examination."
In a later letter you have also set forth certain addl- .tlonalfacts to the effect that:

%ri November 24th the Mstrlct Judge ln : whose court ~such prisoner's case Is pending IS: :sued an order whereby he found,thatthe patient Is 'mentally

disturbedand vlol'ent.~ and that there is no adequate ,faclllty for safekeeping hlm in jail In Bee County. The Court ordered the prisoner to be transferredto the Bexar County jail until further ordered~bythe Court:" Article 1037,.Vernoncs Code of Crlmlnal Procedure, provides that:

"Each county shall be liable for all expense lncurred'onaccount of the safe keeping of prisoners confined In jail or kept.under guard, except prisonersbrought from another county for safe keeping, or on habeas corpus or change of venue; In which cases, the county from which the prisoner Is brought shall be liable for the expense of his safe keeping." Article 1040, Vernonrs Code of proirldes

In part that: andmaln"For the safe keeping, support tenance of prisoners confined In jail or under ~~~~ssherlff shall be allowed the follow-

: I,

. . . Crlmlnal Procedure,HonorableRichard E. Rudeloff,page 3. (ww-1509)

"3. For necessarymedical bill and reasonable extra compensationfor attention to a prisoner during sickness, such an amount as the .commissloners

court of the county where the' prisoner Is confinedmay determineto be just and proper."
In the case of Bush v. State, 353 S.W.2d 859 (C&n. App. 1962), the Court stated that:

"The Constitutionof Texas, Art. 1, Sec. 15-a, Vernon'sAn&St., relates to the commltment of one found to be Insane. It does not relate to insanityas a bar to prosecutionor as a defense In a criminal case. A defendant In a criminal case may successfully plead lnsanity as a bak to prosecutionor punishment, -oras a defense, though the evidencemay not be~such as would authorizehis conrmitment.
"We find no provision In the conkt&kutlon ' or statuteswhich requires a court to appoint a psychlzitrlst

for one charged'wlth a arim? or order that he be sent to a hospital for observatlon. In Ellzey v. State, 158 Tex.Cr.R,604, ~' 259 S.W.2d 211, thls Court held'that the. law of this State does not require a trial court to send a person chargedwith an offense,prior to an adjudicationof insanity,to an Institution for diagnosisor observation. The,prloradju-

. . dicatlon of insanity of appellant, ln~the lunacy proceeding,would not require such an order. We find no 

### error In the court's refusal:" Upon motion for rehearing the Court, In Bush v. State, supra, further stated that:

"En a highly professionalbrief and oral argument,appellanturges that we were In error In our originalholding that he was .not under the Constitutionof the United States entitled to the appointmentof a psychiatrist,to be compensated by the State for his examinationof appellantand for his time while testifying,In the event he concluded that appellantwas a person of unsoundmind. This Court does not turn a deaf ear to appellanttsclaims of his constitutional

rights, as will be seen from our opinion In which we granted relief to him In ExI>

. . -.

.

HonorableRichard E. Rudeloff,page 4. Pdw-1509)

parte Rush, 166 Tex.Cr.R. 259, 313 S.W.2d 287. Rut we are not incllned,toextend the holding of the Supreme Court of the United States in United States ex rel. Smith v. Raldl, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed, 549, when that Court said *We cannot say that the State has that duty by constitutional

mandate.*"
In a prior opinion by tNs office, AttorneyGeneral's OpinionNo. R-2474 (lgsl), It was held that:

II this office expresslyheld In Att'y Cen. Cp: C-4708 (1942) that a County Is liable under the provisionsof Artlcies 1037 and 1040, V.C.C.P., for the necessaryand reasonablemedical expensesof a prisoner during illnesswhen ' the nrisoner Is confined In jail or under guard. The reasonableness, as well as the just an&proper amount of'

the charges for such medical treatment ‘is a matter to be determinedby the Comm%ssloners up. (Emphaelsadded) Attorney CenerallsOpinion No. R-2474 (1951) further states that: Of course, it 5.8 for the Comm%ssloners C&t'to determinethe reasonableness of the claim presented,and the Court may pay only such amount as It determinesto be just and proper."
In view of the language of Articles 1037 and ~1040, Rush v. State, su ra, and Attorney Qener 951) T#i 'al's Opinion~-2474 I;fchaik~ %h"the responslblllty,~by statute, of determMng e opinion that the Commissioners' Court. the necklty and reasonableness of medical oare and treatment ;;;z;; to prisoners confined In jail or under guard during

However, we are of the further oplnlon that the medical &re and treatmentprovided for in Article 1037 and 1040 Is that medioal oare and treatmentnecessary to protect and preserve the health and well-be&rig: of the prisoner,and would not Includemere medical examinationto determinethe sanity or Insanity of a prisonerwhereby the prisonerwould have availableevldenoe to be used as a defensiveIssue In regard to the crime for which he Is charged.

Insofsr aa the Commlssloners~ Court has the responslblllty'of

passing upon the necessity and reaeonableness of, any medical care or treatmentrendered a prisoner confined in. -, - t’ -

HonorableRichard E. Rudeloff,page 5. ww-1509)

jail or under guard, the Sheriff can only bind the county for such medical expensesas are deemed necessary, just and proper by the Commlsslonersl Court.
SUMMARY The Commlsslonersl Court has the reaponslblllty of determiningthe necessityand reasonableness of medical care and treatmentrenderedprisoners confined In jail or under guard pursuant to Articles 1037 and 10&I, Vernon's Code of Criminal Procedure. The Cornmissloners~ Court may authorize the payment of expenses to be incurred In the psychlatrio examinationand treatmentof an Indigent prlaoner If sald Court determinesthat such examinationand treatment Is necessary to protect and preserve the health and well-beingof the prisoner,but this would not includemedical or psychiatricexamination merely to determlne the sanity or Insanity of a prisoner whereby the prisoner would have available evidence to be used as a defensive Issue ln regard to the crime for which he Is charged. The Sheriff can only bind the county for such medical expenses, POP a prlsoner'ln jail or under guard, as are,deemednecessary, just and proper by the Commlsslqners' Court.
Yours very truly,
WILL WILSON Attorney General of Texas:!

PB:wb:zt
APPROVED: OPINION COMMITPEE W. V. tippert, Chalrman Sola Wilcox Vernon Teofan Pat Bslley Assistant

REKBi@DFORTEEATTO~GFNERAL BY: Leonard Passmore